Obama Denies Broad Religious Exemption for HHS Contraception Mandate

The Obama administration announced yesterday that most health insurance plans are now mandated to cover contraceptives (including Plan B and sterilization) for women free of charge. The move significantly narrows the conscience clause exemption for religious organizations like the Catholic Church. Church-affiliated organizations have an extra year (until Aug. 1, 2013) to comply with the requirement, which head of Health and Human Services Kathleen Sebelius said struck “the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Archbishop (soon-to-be-Cardinal) Timothy Dolan has been an outspoken critic of the HHS mandate and has appealed personally to President Obama to grant a broad exemption for religious organizations, a request the president denied, though the rule still includes an exemption for religious employers at houses of worships which serve only their “co-religionists” and not people of different faiths like hospitals, universities, and social service agencies.

“In effect, the president is saying we have a year to figure out how to violate our consciences,” said Archbishop Timothy M. Dolan.

The Archbishop is clearly concerned with Catholic organizations cooperating in something they see as a grave evil, namely, artificial contraception, which everybody knows the Church opposes. Other evangelical allies see this as a violation of the First Amendment and the all-American value of separation of Church and State, as Senator Orrin Hatch of Utah made clear in his response:

“The problem is not that religious institutions do not have enough time to comply. It’s that they are forced to comply at all. Unfortunately, the administration has shown a complete lack of regard for our constitutional commitment to religious liberty.”

The Commonweal blog has started a great discussion on the question of religious liberty and cooperation. Grant Galllicho argues against the mandate for something akin to the Hawaii Compromise:

Under Hawaii law, a religious organization that objects to providing contraception coverage to its employees can invoke a refusal clause that would allow the institution to exclude such services from employee health plans. Religious groups that invoke the refusal clause must — as required by the HHS ruling — provide written notice to employees informing them that contraception is not included in their health plans, and they must tell employees where such services can be obtained. A refusal clause only pertains to contraception services intended to avoid pregnancy. An employer must provide coverage for contraception prescribed to treat, for example, the symptoms of menopause. According to the law, an employee is entitled to buy contraception coverage form her insurer at a cost that is no higher than the enrollee’s pro-rata share of the price the employer would have paid had it not exercised the religious exemption. So religious institutions do not have to subsidize insurance coverage including contraceptive services, and employees who want such coverage can purchase a separate rider with their own money.

He concludes that Obama’s decision, while not forcing Catholic organizations to cooperate significantly in evil, is nevertheless “politically daft and illiberal.” This seems a pretty reasonable assessment to me (not to mention the fact that the mandate won’t even take effect until almost a year after the election, at which point Obama might not even be president. Odd move for an election year). In addition to these arguments, the Society of Catholic Social Sciences has questioned the alleged “scientific” basis of the decision, as expressed by Sebelius:

“Scientists have abundant evidence that birth control has significant health benefits for women,” Ms. Sebelius said, and “it is documented to significantly reduce health costs.”

I don’t have enough access to the data to be able to judge whether free access to contraceptives is actually better for women’s health. I do know, however, that no matter how good access to contraception is, there are still going to be unplanned pregnancies. Making contraception free and readily available in no way guarantees that sexually-active individuals will use it consistently or reliably. It is important that attention to women’s health and well-being include social and financial support for those women who do experience an unwanted pregnancy and choose not to terminate, including improved access to pre- and post-natal care, streamlined adoption processes, financial assistance for family-friendly housing, and better childcare options. Feminists for Life has been a leader in this area, attending especially to how college campuses can find ways to meet the needs of their students who experience an unplanned pregnancy so that they do not feel the need to terminate.

Catholic Charities and other religiously-affiliated social services agencies also do laudable work helping women choose adoption over abortion, including for babies who have special needs. Comprehensive reproductive health coverage for women includes a variety of services not covered in the HHS mandate but which are the focus of organizations like Catholic Charities who are adversely affected by this mandate. Whatever you think of the HHS mandate, what it is not is a “huge victory for women’s health” unless you narrowly restrict “health” to mean “not having a pregnancy you didn’t want.” It is important to remember on this anniversary of Roe v. Wade that “greater reproductive liberty” does not actually equate with healthier and better-off women.

3 Comments

Jana Bennett / January 21, 2012

Amen, Beth. In addition to what you say, I think that Catholics have a particular vision of the person that is far more inclusive of some who often get overlooked in this society (I am thinking here of Charlie’s post earlier this week on the kidney transplant case), and I think also of the US government’s history of exclusivity with respect to mental disabilities. The strong emphasis in the current stories about HHS funding and the conscience clause is that Catholics=exclusive, and non-Catholic (or at least secular) = inclusive. That’s more than a bit like the pot/kettle syndrome and I worry very much about what gets lost in the discussion here. That’s where your point about women’s health being so much broader than what is portrayed, is of immense importance.

I’d just like to add some legal perspective here. Up until 1978 is was legal for employers to discriminate against women in any aspect of employment based on pregnancy or pregnancy-related conditions (e.g., normal post-partum recovery, recovery from a miscarriage, etc.). The passage of the Pregnancy Discrimination Act of 1978 made pregnancy-related employment discrimination illegal. Despite the law, employers who covered an array of prescription medications or devices to prevent various medical conditions (e.g., high cholesterol medication, high blood pressure medication) refused to cover prescription contraception (which is exclusively used by women).

For the most part these refusals of coverage had nothing to do with conscience, they were rooted in a belief that women who became pregnant (or who didn’t want to become pregnant) should bear the costs of their decisions alone. This matter really came to a head after Viagra went on the market. Employer health insurance that wouldn’t cover prescription contraceptives covered male employee’s Viagra prescriptions.

Some women started to fight the unequal coverage. While there was a belief that it was unfair for a man to have his Viagra prescription fully paid for, while a woman’s birth control pills were excluded from coverage — the legal hook women used to fight this was the Pregnancy Discrimination Act of 1978.

Some federal district courts and the Equal Employment Opportunity Commission held that if an employer’s health insurance plan covered any kinds of preventative medication (e.g., flu vaccines, high blood pressure medication, etc.) or equipment — then the employer had to cover medication or equipment (e.g., IUDs) that were designed to prevent the medical condition of pregnancy.

Honestly, I used to get pretty angry when my secular college wouldn’t cover my prescription contraceptives. (I’m not Catholic.) I don’t know if I’d argue that requirements for employers to cover contraceptives are a” huge victory for women’s health” — but they are a big victory for women’s “wallets”. When my employer finally decided to cover prescription contraceptives, that put an extra $240/year in my bank account that I could spend on my kids, myself, or my husband. Over a period of 30+ years that I was fertile and in the work force, that’s a lot of money.

All that said, there’s still the issue of what happens when federal law contradicts the mandates, theology, ethics or practices of a particular religion. What happens to the observant Jewish military officer who is not permitted to wear a kippah on his head because it puts him “out of uniform”? What happens to the devout Christian (or Jewish) airline pilot, or emergency room doctor who refuses to work on the sabbath? I know the legal answers to these questions — but I think this is an area where separation of church and state issues get really tricky.

I have a rather large question which I am not sure I can articulate well, but I’ll give it a try. How consistent or heathy is it for a religion like Catholicism, which views persons and personhood differently from a secular American government, to expect to be an integral part of American society and to not be at odds with the government? To what extent should Catholics and the Catholic Church expect to pay no price at all for their outlook, which is quite different from that of secular government. (And in the case of the contraceptive mandate, it should be noted that not only does the outlook of the USCCB differ dramatically from that of the secular government, but also from the actual practice of Catholics of childbearing age.)

On the one hand, we have groups like the Amish that have ways so different from contemporary society that they live apart from it as much as possible. That is, of course, an extreme, and there is little precedent in Catholic history for that kind of separation. But is the Catholic Church going to the opposite extreme and saying that there must be nothing in American society that Catholics feel they may not be a part of?

Some conservative Catholics have recently been revisiting JFK’s 1960 speech to the Greater Houston Ministerial Association, which many of us thought answered the question of whether one could be a good Catholic and a good American (or American president) once and for all, and saying Kennedy was wrong. This raises in my mind the question of whether the demands of Catholicism and the demands of American citizenship can always be reconciled to the point where Catholics and Catholic organizations can expect to be operate in America and the American business world without making any tough choices.

Can Catholicism and Americanism be made so compatible that Catholics can fully subscribe to both? Is there no part of Americanism that Catholics must not say, “We cannot accept that at all, even by getting ourselves an exemption?”

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